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Reforms to confiscation regime to recover £8 million more per year
  • Sep 21, 2020
  • Latest News

Proposals to reform the confiscation regime could help recover an extra £8 million per year from convicted criminals, by more accurately and efficiently determining a defendant’s criminal proceeds and more effectively enforcing confiscation orders.

The proposals are outlined in a consultation paper published today [17 September 2020] by the Law Commission of England and Wales.

A “confiscation order” is an order made personally against a defendant to pay a sum of money equivalent to some or all of their benefit from crime, depending on the assets available to the defendant. The defendant is not obliged to realise any particular asset to satisfy the order, as long as the sum of money is paid.

However, the regime has been ineffective at recovering the benefits of crime from defendants. The making of confiscation orders has been complex and time consuming, and once an order has been made, defendants have been able to frustrate attempts at enforcement. This has resulted in the UK’s confiscation debt growing to more than £2 billion (as of March 2019).

This project aims to tackle these issues and improve enforcement of fairer, more realistic confiscation orders. Proposals include:
Ensuring victims can receive compensation more quickly by allowing the court to impose financial penalties and forfeiture orders prior to confiscation proceedings being resolved.

Allowing the court to impose contingent orders at the time that a confiscation order is made so that, if a defendant doesn’t pay in the time allowed, assets – including property – could be taken to recover the proceeds of crime efficiently.

Changing the law so that if a defendant fails to pay their confiscation order and is sent to prison, they are no longer subject to unconditional release halfway through the period of imprisonment. Instead, we propose that an early release would be on licence, meaning that future refusal to pay could see the defendant return to prison.

These proposals, which are now being consulted on, would give courts greater ability to confiscate money made through crime, whilst ensuring decisions are fairer and within the limits of the defendant’s means.

Proposals for reform in detail
The Law Commission has made a series of proposals covering each stage of the confiscation process. The proposals aim to improve the process by which confiscation orders are made; ensure fairness of the confiscation regime; and optimise the enforcement of confiscation orders so they are more effective at depriving a defendant of their benefit from criminal conduct.

The key proposals include:
Introducing new, clear processes and frameworks set out in legislation, procedure rules and in guidance as to how to courts should approach confiscation. For example:
Setting out express statutory objectives of the confiscation regime of: depriving a criminal of their proceeds of crime; deterring and disrupting crime; and compensating victims (where such compensation is to be paid from confiscated funds).

Removing “punishment” from the objectives of confiscation, so that punitive sentencing and restorative confiscation are clear and distinct parts of the criminal justice process.
Clarifying that sentencing should take place prior to confiscation proceedings being resolved unless the court otherwise directs.
Making the process more efficient by establishing standard timetables for confiscation and introducing a six-month maximum period between sentencing a defendant and a confiscation order coming into effect.
Giving the Crown Court the discretion to impose contingent orders at the time of making the confiscation order. If a defendant then fails to pay the confiscation order, the contingent order would allow assets to be claimed in a timely way, permitting the efficient recovery of the proceeds of crime.
Giving the court discretion to impose financial penalties and forfeiture orders prior to confiscation proceedings being resolved. This will enable compensation to be awarded far earlier in the process than at present, benefitting victims.
For defendants who are sent to prison for failing to pay their confiscation order, we propose that when automatically released half way through their sentence, they should be released on licence – rather than unconditionally – so they could be returned to prison for continued refusal to pay their confiscation order.
This would improve the enforcement of confiscation orders.
In the current system, defendants are unconditionally released half way through their sentence. They are still liable to pay the confiscation order, however enforcement of the order tends to be difficult.
Defendants appearing before the magistrates’ court in enforcement hearings will be obligated to provide clearer and more detailed evidence of their financial position if they claim to be unable to pay their order.
Creating flexible tools for enforcement. For example, a judge could decide to pause or reduce the accrual of interest to incentivise continued compliance with the confiscation order.

Next steps
The Law Commission’s consultation opens on 17 September 2020 and will run until 18 December 2020. We hope to hear from all those with expertise and experience of the confiscation regime. The responses we get will help inform our final recommendations to Government which we will aim to publish in 2021.